Judge: Lynne M. Hobbs, Case: 21STCV31602, Date: 2023-09-18 Tentative Ruling

Case Number: 21STCV31602    Hearing Date: December 8, 2023    Dept: 30

YI-FAN WANG vs CITY OF LOS ANGELES, ENTITY UNKNOWN

Demurrer without Motion to Strike

TENTATIVE

Defendants’ demurrer is OVERRULED.  Moving party to give notice.

Request for Judicial Notice

Defendants request judicial notice of Google Maps Photos of the intersection of Allison and Douglas.

Evidence Code § 452(h) allows the Court to judicially notice any “[f]acts and proposition that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” As such, the request is GRANTED. However, the court is not mandated to accept the truth of the judicially noticed document’s contents or the parties’ interpretation of those contents. (Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374.) The Court does not accept the truth of the judicially noticed documents’ contents.

Legal Standard

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law ….” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525).) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters; therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc., §§ 430.30, 430.70.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, supra, 147 Cal.App.4th at 747.)

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) “A demurrer for uncertainty will be sustained only where the complaint is so bad that defendant cannot reasonably respond—i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her.” (Weil & Brown, Civil Procedure Before Trial (The Rutter Group) § 7:85 (emphasis in original).)

Discussion¿

Defendants demur to Plaintiff’s Complaint on the grounds that the sole cause of action for negligence fails to state facts to constitute a cause of action and is uncertain. Defendant additionally argues that Plaintiff’s FAC constitutes a “Sham Pleading.”

I. Defendant Weinstock – Piercing the Corporate Veil

First, Defendants argue that the Court should sustain the demurrer as to Defendant Weinstock without leave to amend because Plaintiff’s FAC raises no allegations giving rise to piercing the corporate veil.

The elements for negligence are: (1) a legal duty owed to the plaintiff to use due care; (2) breach of duty; (3) causation; and (4) damage to the plaintiff. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.) Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property to avoid exposing others to an unreasonable risk of harm. (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.)

Here, the FAC alleges that on October 18, 2020, Plaintiff was traveling west on Allison Avenue, toward Douglas Drive, coming from Sunset Blvd. At the intersection of Douglas and Allison, there is a stop sign obscured by the leaves and branches of the overhanging tree in the parkway of the property(ies) located at 1385-1393 Allison Ave, Los Angeles, CA 90026 (“Subject Property”), as well as other dangerous conditions. As a result of the dangerous conditions at the time, Plaintiff’s vision of the stop sign, approaching the Allison and Douglas intersection, was obscured by the property conditions in the control and dominion of the Defendants. As a consequence of the obscurement of Plaintiff’s vision by the property of the Defendants, Plaintiff sustained damages when his vehicle and another vehicle collided in the intersection of Allison Ave and Douglas Drive.

The Court notes that the FAC alleges that Defendant Weinstock controlled the property which had dangerous conditions in that it obscured Plaintiff’s vision of the stop sign. As such, Defendants have not explained why this is not sufficient, nor have they made any arguments as to why the FAC would need to make allegations with regard to piercing the corporate veil. It appears Defendants are attempting to rely on the Court’s last ruling on their demurrer where the Court granted judicial notice of: (1) the grant deed, which shows the Corporate Defendant owned the property, and (2) the Secretary of State’s Corporate Filing for the Corporate Defendant, which shows that Weinstock is a corporate officer, to argue that Weinstock did not own the adjacent property. However, Defendants have not requested judicial notice of these items in the demurrer at hand. Nevertheless, even if the Court were to rely on the fact that it granted judicial notice of these items in the prior demurrer, the Court is not mandated to accept the truth of the judicially noticed document’s contents or the parties’ interpretation of those contents. (Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374.) As a result, the FAC alleges sufficient facts regarding Defendant Weinstock’s control of the property to withstand demurrer. Defendants may elect to file a motion for summary judgment at a later stage in order to provide evidence and full briefing as to this argument.

II. Is the FAC a Sham Pleading?

Defendants next argue that the FAC is a sham pleading because it omits certain facts without any explanation. Defendants argue the original complaint alleged that the City was responsible to upkeep the tree.

When a complaint contains allegations that are fatal to a cause of action, a plaintiff facing demurrer cannot avoid those defects simply by filing an amended complaint that omits the problematic facts or pleads facts inconsistent with those alleged earlier. (Banis Restaurant Design, Inc. v. Serrano (2005) 134 Cal.App.4th 1035, 1044.) Absent an explanation for the inconsistency, a court will read the original defect into the amended complaint, rendering it vulnerable to demurrer again. (Hendy v. Losse (1991) 54 Cal.3d 723, 743.) A subsequent complaint is considered a “sham” pleading if the amendment contains allegations that contradict the earlier pleading or that omit previously pled facts that rendered the initial complaint deficient. (Owens v. Kings Supermarket (1988) 198 Cal.App.3d 379, 383-84.)

Defendant’s argument is without merit. Plaintiff explains that through discovery Plaintiff learned that Defendants had control over the tree. The demurrer is OVERRULED on this ground.

III. Failure to State Sufficient Facts Against Corporate Defendants

Corporate Defendants argue the FAC fails to state sufficient facts to constitute a cause of action for negligence against them. Plaintiff’s FAC describes the facts of the accident as occurring in or on a public street that no doubt is owned and controlled by Defendant City of Los Angeles. Defendant also argues it did not maintain the tree because it acquired the property three days prior to the incident.

“The owner of premises is under a duty to exercise ordinary care in the management of such premises in order to avoid exposing persons to an unreasonable risk of harm. A failure to fulfill this duty is negligence.” (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619.)¿“[P]roperty owners are liable for injuries on land they own, possess, or control. But . . . the phrase own, possess, or control is stated in the alternative. A defendant need not own, possess and control property in order to be held liable; control alone is sufficient.” (Alcaraz v. Vece (1997) 14 Cal.4th1149, 1162.)¿

Here, the FAC alleges that Plaintiff’s vision of the stop sign, approaching the Allison and Douglas intersection, was obscured by the property conditions in the control and dominion of the Defendants. Thus, Plaintiff’s FAC sufficiently states facts that support his causes of action for negligence against Corporate Defendants. Although Corporate Defendant requested judicial notice (in their past demurrer) of the grant deed showing it did not own the property until three days prior to the accident and therefore did not maintain the tree, this information does not refute Plaintiff’s allegation in the FAC that Corporate Defendant controlled the tree.¿¿Moreover, as discussed above, the Court is not mandated to accept the truth of the judicial noticed document’s contents of which Defendants have not even requested judicial notice in this demurrer.

As such, the demurrer is OVERRULED on this ground.

Lastly, Defendants have not made any arguments as to why the FAC is uncertain, and the Court finds it is not. While Defendants have made references to Plaintiff lumping Defendants together in the reply, this argument cannot be entertained as it was made for the first time in the reply. In any event, any uncertainty can be resolved during discovery. Moreover, “[a] demurrer for uncertainty will not lie where the ambiguous facts alleged are presumptively within the knowledge of the demurring party.” (Bacon v. Wahrhaftig (1950) 97 Cal.App.2d 599, 605.)

Conclusion

Based on the foregoing, Defendants’ demurrer is OVERRULED.

Moving party is ordered to give notice.